Parmeshwar Dayal vs King-Emperor

Ross, J.—The petitioner is one of eight persons who have been convicted under Sections 411 and 414 of the Indian Penal Code in connexion with the theft of three large bales of cloth and one box containing packages of medicine bottles from the railway station at Bhagalpur. The stolen property was recovered in a house rented by one of the accused, Singheswar Lal, situated near the railway station.

The first contention on behalf of the petitioner is that there is no evidence or finding that the petitioner was in possession of any of the stolen goods; and as regards Section 414, there is no evidence of any overt act done by the accused towards disposing of or making away with the property. Now the findings of the appellate Court are that:

The evidence to implicate the appellants is that they were all in this house on the 9th of March 1925 disputing as to what was to be done with the booty.

And, again, that:

About a dozen people were seen discussing as to how the cloth was to be divided,

The findings of the trial Court are more detailed and are that the witnesses have proved that the packages were found cut through and the cloth in the bales was lying open in the house of Singheswar Lal and all the first nine accused were sitting inside the house and quarrelling over the division of the property, and were claiming a share in the same. There is a further finding that there is also sufficient evidence to show that the accused had cut open the packages of cloths and assisted in concealing or disposing of the stolen property.

The learned Counsel for the petitioner referred to the case of Beg. v. Wiley [1850] 2 Den. C.C. 37. In that case the jury convicted the accused but the case was reserved for the opinion of the Court of appeal. There was a division of opinion and the majority of the Court held that the conviction was wrong. The facts are thus stated by Baron Martin:

Two men stole some fowls which they put into a sack, and carried to the house of Wiley''s father, for the purpose of selling them to Wiley. All three went together from the house to an outhouse; the bag was carried on the back of one of the thieves; and when the policemen went in, the sack was found lying on the floor unopened, and the three men around it as if they were bargaining, but no words were heard. Now I am of opinion that Wiley, under those circumstances, never did receive those fowls.

Lord Campbell, whose opinion was that of the minority, said that:

The material question is, whether there has been a possession malo animo; and all the Judges, I believe, are of opinion that there may be a sufficient possession, though there is not a manual possession.

In that case there was no possession by the accused Wiley. But here possession is the basis of the finding; and the only question in debate between the accused was as to the actual division of the property. Wiley''s case [1850] 2 Den. C.C. 37, therefore, is no authority on the present question; and, in view of the findings, I am of opinion that so far as that question is concerned the conviction under Sections 411 and 414 is sustainable.

The main question, however, relates to the case of this particular accused. His defence was that he was falsely implicated and had been brought by the police, from outside, to the house where the stolen property was found. The learned Sessions Judge has referred to the evidence of thirteen witnesses, nine of whom are police officers, two are search witnesses, and two are private persons who were declared hostile. Four of the police officers speak to the presence of the petitioner in the group of men in the house. But whereas Ramrachya Singh (P.W. No. 22) says that he assisted Ramrup Singh, who is prosecution witness No. 13, in arresting Parmeshwar Dayal, Ramrup Singh himself says nothing on this point. Prosecution witness No. 20, who identified the petitioner in the house, called him Bhubaneshwari. There is therefore some uncertainty about the case of this man on the prosecution evidence alone.

Now the two witnesses who were declared hostile, Abdul Wahid (P.W. No. 19) and Madan Barhi (P.W. No. 26), in their cross-examination made statements consistent with the defence raised by the petitioner. They say that Parmeshwar Dayal was brought subsequently by the police from outside, from the direction of his own house. The contention on behalf of the petitioner with regard to this evidence is that there was no justification for declaring these witnesses hostile. The learned Sessions Judge has said nothing on this point and the reasons given by the trial Court are, in my opinion, no reasons at all. What the trial Court said was that these witnesses do not support the prosecution story, but they are admittedly neighbours of the accused and they have been won over by them. Witness No. 19 is a tout and Witness No. 22 is a man of straw and quite unreliable. These are no reasons for declaring the witnesses hostile; and unless there is something in their depositions which conflicted with earlier statements made by them, which would afford ground for thinking that they had been gained over by the defence, the prosecution is not entitled to declare them hostile.

Now Abdul Wahid was only examined to prove that he had let his house to Singheswar and he did make that statement. He was then cross-examined by the defence; and, apparently because of statements made in that cross-examination, he was allowed to be cross-examined by the prosecution. Madan Barhi was not examined in chief, but only tendered for cross-examination; and it was after his cross-examination by the defence that he was allowed to be cross-examined by the prosecution. This procedure was, in my opinion, erroneous; and the fact that these witnesses are neighbours of the accused as not sufficient ground for treating them as hostile in order to discredit the statements that they made favourable to the defence. Apart from this, a large body of evidence was given on behalf of Parmeshwar, Dayal to show the circumstances in which he was arrested. It is true that some of the witnesses are persons of little consideration and others are his own relatives: but one of the witnesses is a Sub-Registrar whose evidence was prima facie entitled to considerable weight.

The learned Sessions Judge has not discussed the evidence of this or any other defence witness with a view to showing why it should not be relied upon; he has merely said that he prefers the prosecution evidence, and has considered certain probabilities. The trial Court disbelieved the Sub-Registrar on the ground that he is a caste-fellow of the petitioner. This reason is in my opinion insufficient; and the evidence of this witness ought to have received fuller consideration.

In view of the doubt that is thrown on the prosecution case by the defects of the prosecution evidence itself, which I have referred to above, it seems to me that there is a distinct element of doubt as regards the complicity of the petitioner. I would therefore allow this application and set aside the conviction and sentence of Parmeshwar Dayal and direct that he be acquitted and released from bail.

Kulwant Sahay, J.

I agree.